Articles

Beyond a Reasonable Doubt? Jury Nullification and the Power of the People

By Dennis Loo (7/31/13)

New material added 8/1/13

Some of those who support the Zimmerman verdict say that given the available evidence, one cannot find beyond a reasonable doubt that Zimmerman murdered Trayvon Martin. They may not personally have any doubts that Zimmerman did in fact murder Trayvon, but they believe the legal standard for murder 2 cannot be and/or was not met in the trial.

“Maddy,” Juror B29, fits this description, as did at least two others in the jury, who all nevertheless ended up voting to acquit Zimmerman, believing that the legal instructions they were given dictated this result. This was especially true because of Judge Debra "Full" Nelson’s instruction1 to the jury before they began deliberations that under Stand Your Ground, Zimmerman had a right to defend himself if he felt threatened and that he did not have an obligation to retreat. This instruction, it should be pointed out, was not justified given the fact that Zimmerman was unquestionably initiating an aggressive action.

I was at a large gathering recently made up mainly of black folks and even among this crowd that was overwhelmingly angry at and/or worried by the verdict at least one young brother told me that this was a reasonable verdict. Former NBA All-Star Charles Barkley joins him in this sentiment. Some people at Open Salon where I post at times have also said this.

I have already written about how decisive the judge’s rulings in pre-trial hearings were in shaping the parameters of what could and could not be said in the trial. The judge in fact decided the case when she ruled off the table “racial profiling” as irrelevant to the case. Maddy could have and should have stood up and defied this but she didn’t and she may not have realized that she could have. A hung jury would have been a much better result than exonerating this murderer.

Which raises a larger question here beyond the courtroom and jury deliberation room walls: people have a responsibility and ability to do much more than what we are led to believe and outright told to believe.

Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.

Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

What I want to hone in on in this essay is the question of “beyond a reasonable doubt.” If you disengage this case from its moorings in the physical evidence, as the defense did and as the judge did by her rulings, and as the prosecutors did in failing to mount an effective case, then someone can imagine any number of hypothetical scenarios in which the hunter – Zimmerman – became the hunted. But then, if you disengage a discussion from physical facts, one can imagine all kinds of fantastical scenarios that have no bearing on reality and the facts as we know them. Frankly, the only way that one can imagine that Zimmerman is not guilty of cold-blooded murder is if one imagines that a 17-year old slender black boy became a beast. This is something that altogether too many people are willing to think. As I wrote in a prior article, audio expert Alan Reich's brilliant, revealing, and sound analysis of the phone calls provides a chilling picture of what happened that is consistent with the other known facts, social dynamics, and the physical evidence. This analysis, however, was ruled once again by the judge, as inadmissable. The jury never got to see it. See for yourself here: http://www.wesh.com/blob/view/-/20140688/data/1/-/kira45/-/Alan-Reich-voice-report.pdf

If, as I have previously also pointed out, Zimmerman had a right to self-defense, then Trayvon Martin had at least as much of a right, if not more, given that a) he was the one being stalked by someone who never revealed to Trayvon that he was with Neighborhood Watch, b) Zimmerman was packing a gun and Trayvon had Skittles, c) Zimmerman had resisted the 9/11 operator's directive to stay out of it, and d) Zimmerman showed a belligerent attitude in the 911 phone call. Zimmerman regarded Trayvon as “out of place” and “not belonging.” This is clearly a form of racial profiling.

But then, this instruction about the victim and Trayvon’s rights were never presented by the prosecutors and definitely was not presented by the judge to the jury in her charge to them before they retired to deliberate.

You have to be willing to think outside the narrow confines of the box that the prosecution, the defense, and the judge imposed upon this case. If you remain within that box, then you are condemned to thinking only as far as those who made this box for you are willing to allow you to go. A wretched place to be, if you’re someone like Maddy who reports finding it hard to sleep and eat given her feelings of guilt about letting a murderer go.

Maddy, at least, is someone who struggles with this dilemma. Juror B37, the first one to step forward to speak publicly and who was planning to make what she hoped was some real money in a book deal before the public backlash against her idea led her agent to withdraw, struggles with no such dilemma, smug and secure in her place as a member of a privileged race.

There is a larger lesson here - all of us in this country have a choice, whether or not the average person is strongly aware of this. We can choose to accept the confines of the box that authorities have constructed around us, with the walls for those of relative privilege (e.g., the rich and the not as wealthy but still relatively comfortable, materially and/or subjectively) erected around them that keep them in and others out. These walls form a kind of gilded ghetto, much like émigré gated communities of Americans in Third World countries, complete with their McDonald’s and Pizza Hut et al.

Or we can recognize the great harm that this particular box is doing to the world – the price that we are paying for not speaking up against and not acting against the grave crimes being committed in our names. As Cornel West put it so eloquently and courageously given the kickback in certain quarters that he had to know that he would face for saying this: “Obama is a global George Zimmerman.” The strictly patrolled walls of this box which define what is legitimate to think and do and what is not legitimate to think and do is very similar to the dilemma that faces the American people as a whole in the political arena: you have the Republican Party and the Democratic Party. The Zimmerman case prosecutors are akin to the Democratic Party. They are allegedly pursuing the prosecution of a murderer and a criminal (e.g., torturer George W. Bush), but they refuse to use the full arsenal of facts, evidence, law, and argument that would allow them to win their case. Instead, they collude in obvious and not so obvious ways, appearing at times to be incompetent. The reason for this collusion? The prosecutors ("Democrats") and the defense lawyers ("Republicans") and judge (either "Democrat" or "Republican") are representatives and members of the very same order and do not wish to see that order upended.

It is not only not enough to accept the boxes we are put into, as comfortable as those gilded boxes might be; it is irresponsible to side with oppressors and those who rain death from above with drones, or shoot innocents in cold blood through the heart in the streets. It is beyond a reasonable doubt that such a seemingly safe and cowardly path is deadly for others who are targets because of this, and ultimately deadly, if nothing else, for the souls of those who engage in this course of action.

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1A "full nelson" is a grappling, controlling move. See Wikipedia: "In collegiate, high school, middle school/junior high school, and most other forms of amateur wrestling, the move is illegal. The holder is on the back side of the opponent, and has his or her hands extended upwards under the opponents armpits, holding the neck with a palm-to-palm grip or with interlaced fingers. By cranking the hands forward, pressure can be applied to the neck of the opponent. The usage of the full nelson in combat sports is very limited. It is a secure hold which can be used to control the opponent, but does not allow for finishing action, such as pinning the opponent, executing a reliable submission hold, or allowing for effective striking. Because it can be used as a limited neck crank, it is considered dangerous in some grappling arts, and is banned, for instance, in amateur wrestling."

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